Ford v. Board of Appeals

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2026
08:29 AM
Dkt. 99 MO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
LAWRENCE FORD; JOHN KOONTZ; DON DAVIS; PHILLIP KOSZAREK;
WILLIAM ROBERT GAGE, JR.; REBECCA S. GAGE,
Complainants-Appellants-Appellees,
v.
BOARD OF APPEALS, COUNTY OF HAWAI#I, Agency-Appellant,
and JEFF DARROW,1 DIRECTOR, DEPARTMENT OF PLANNING,
COUNTY OF HAWAI#I, Appellee-Appellant, and
RYAN A. NEAL; BEATA M. ZANONE, Respondents-Appellees-Appellees

and
CAAP-XX-XXXXXXX
LAWRENCE FORD; JOHN KOONTZ; DON DAVIS; PHILLIP KOSZAREK;
WILLIAM ROBERT GAGE, JR.; REBECCA S. GAGE,
Complainants-Appellants-Appellees,
v.
BOARD OF APPEALS, COUNTY OF HAWAI#I, Agency-Appellee,
and JEFF DARROW, DIRECTOR, DEPARTMENT OF PLANNING,
COUNTY OF HAWAI#I, Appellee-Appellee, and
RYAN A. NEAL; BEATA M. ZANONE, Respondents-Appellees-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CCV-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Ryan A. Neal and Beata M. Zanone (Homeowners) own
property in Captain Cook, Hawai#i, in the Hawai#i County
Agricultural Project District and the State Land Use Agriculture

1
Jeff Darrow, the current Director of the County of Hawai #i
Department of Planning, is substituted for Zendo Kern, the former director,
under Hawai#i Rules of Appellate Procedure Rule 43(c)(1).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

District. Their neighbors2 complained to the Hawai#i County
Planning Department's Director that they were operating a short-
term rental business on their property without a permit, in
violation of county zoning ordinances and state land use
statutes.
The Director determined that Homeowners were not
violating county zoning ordinances. The neighbors appealed to
the Hawai#i County Board of Appeals.3 The Board of Appeals
granted Homeowners' motions for summary judgment and dismissed
the appeals.
Neighbors4 appealed to the Circuit Court of the Third
Circuit. The court ruled that the Board of Appeals "violated
applicable statutes, used an unlawful procedure, committed errors
of law, made decisions that are clearly erroneous and acted in an
arbitrary manner[.]"5
In CAAP-XX-XXXXXXX, the Director and the Board of
Appeals (together, the County) appeal from the Circuit Court's
Judgment on Appeal. In CAAP-XX-XXXXXXX, Homeowners appeal from
the Judgment on Appeal. We consolidated the appeals. We hold:
(1) the Board of Appeals was authorized to consider dispositive
motions; but (2) the Board's orders granting Homeowners' motions
for summary judgment did not contain statements of undisputed
material fact or conclusions of law as required by Hawaii Revised
Statutes (HRS) § 91-12 (2012). We reverse the Circuit Court's
Judgment on Appeal and remand to the Board of Appeals for further
proceedings.

2
Don Davis, Lawrence Ford, William Robert Gage, Jr., Rebecca S.
Gage, Peter Hazard, John Koontz, Phillip Koszarek, and John LoGerfo.
3
Davis, Ford, Hazard, Koontz, Koszarek, and LoGerfo's appeal was
docketed as PL-BOA-2022-000020. The Gages' appeal was docketed as
PL-BOA-2022-000021. The appeals were not formally consolidated. The parties
agreed to consolidate the contested case hearings, although separate decisions
would be issued.
4
Davis, Ford, Koontz, Koszarek, and the Gages.
5
The Honorable Wendy M. DeWeese presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I. PROCEDURAL HISTORY

In June and July 2021, Homeowners' neighbors complained
to the Director that Homeowners were operating a short-term
rental business on their property without a permit.
By letter dated September 17, 2021, the Director warned
Homeowners that short-term vacation rentals were regulated by the
County Zoning Code. Homeowners were asked to comply with the law
within thirty days.
By letter dated October 12, 2021, Homeowners informed
the Director that Neal resided on the property full-time, Zanone
resided on the property more than half-time, and they hosted
guests on the property as a hosted short- or long-term rental
that complied with all applicable rules and regulations.
By letter dated October 21, 2021, the Director informed
Homeowners that the Planning Department confirmed they were not
operating a short-term vacation rental, and the case was being
closed.
By letters to the Director dated January 20, 2022, the
neighbors explained they were not complaining about violation of
Hawai#i County Council's Ordinance 18-114 (pertaining to non-
hosted short-term vacation rentals), but about short-term rental
activity in the State Agriculture district in violation of HRS
Chapter 205. They asked that the Director revise his letter to
Homeowners consistent with the State Land Use Commission's
May 20, 2021 declaratory order in Rosehill v. County of Hawai#i
and Act 77 of the 2021 Hawaii Session Laws, which had taken
effect on July 1, 2021.
By letters dated February 15, 2022, the Director
informed the neighbors of the Planning Department's
investigation. The letters stated:

Our investigation and inspection into the alleged activity
revealed that the "dwelling" in question is considered a
farm dwelling as required by County Ordinance 97-133, and
that the property is the primary residence of the landowner
Mr. Neal. Online advertisements clearly states [sic] that
Mr. Neal resides on the property.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Planning was also able to verify farming activity on the
property, which includes the cultivation [sic] lychee,
rambutan and citrus fruits.

Hawaii County Zoning Code Chapter 25, Section 25-1-5.
Definitions:

"Farm Dwelling" means a single-family dwelling located on or
used in connection with a farm, or if the agricultural
activity provides income to the family occupying the
dwelling.
"Short-Term Vacation Rental" (STVR) means a dwelling unit of
which the owner or operator does not reside on the building
site, that has no more than five bedrooms for rent on the
building site and is rented for a period of thirty
consecutive days or less.
Based on the findings and the definitions provided above, we
have determined that the parcel in question is not in
violation of the Hawaii County Zoning Code, Chapter 25 or
County Ordinance 97-133. This case is now closed.

The neighbors appealed to the Board of Appeals. The
Board scheduled contested case hearings. It issued a Scheduling
Order that provided:

4. Dispositive motions shall be served upon the opposing
party and filed with the Board no later than
September 30, 2022, by 4:30 p.m. The form and service
of any dispositive motion shall be made in accordance
with Board Rule 3-12.
5. Any memorandum in opposition to any dispositive motion
shall be served upon the opposing party and filed with
the Board no later than October 5, 2022, by 4:30 p.m.,
and shall be made in accordance with Board Rule 3-12.

Homeowners moved for summary judgment. The Board of
Appeals considered the motions for summary judgment at a
December 9, 2022 hearing. After hearing the parties' arguments,
the Board convened an executive session. After reconvening the
hearing, it voted to grant Homeowners' motions for summary
judgment. It then concluded the hearing.
The Board of Appeals issued substantially identical
orders granting Homeowners' motions for summary judgment on
April 26, 2023. The orders dismissed the appeals.
Neighbors appealed to the Circuit Court under HRS
§ 91-14. The Circuit Court concluded that the Board of Appeals

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

used unauthorized procedure, met in an unauthorized executive
session, failed to render written findings and conclusions to
support its orders, and ignored a decision by the Circuit Court
of the Fifth Circuit Court concluding that transient
accommodation activity is not a permitted use in the State Land
Use Agriculture District. The Circuit Court vacated the Board of
Appeals' orders and directed the Board of Appeals to grant
Neighbors' appeals.
These secondary appeals followed. While the appeals
were pending, the Board of Appeals entered orders granting
Neighbors' appeals and reversing the Director's decision based on
the Circuit Court's Judgment on Appeal. Neighbors moved to
supplement the records on appeal with the Board of Appeals'
orders, and moved to dismiss these appeals, arguing they were "no
longer justiciable."

II. STANDARDS OF REVIEW

A. Secondary Appeals

Our review of a circuit court decision on an appeal
from an administrative agency decision is a secondary appeal; we
must determine whether the circuit court was right or wrong by
applying the standards of HRS § 91–14(g) to the agency's
decision. Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114,
120, 424 P.3d 469, 475 (2018). Our review is generally confined
to the record before the agency. HRS § 91-14(f) (2012 & Supp.
2024).
Under HRS § 91-14(g) a reviewing court may affirm the
agency's decision; or remand the case with instructions for
further proceedings; or reverse or modify the agency's decision
and order if the appellant's substantial rights may have been
prejudiced because the administrative findings, conclusions,
decisions, or orders: (1) violate provisions of the constitution
or a statute, (2) are beyond the agency's statutory authority or
jurisdiction, (3) used unlawful procedure, (4) were affected by

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

other error of law, (5) were clearly erroneous, or (6) were
arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. Cadiz v. QSI,
Inc., 148 Hawai#i 96, 106-07, 468 P.3d 110, 120-21 (2020).

B. Agency Rules

An agency's interpretation of its own rules is
generally entitled to deference. Gillan v. Gov't Emp. Ins. Co.,
119 Hawai#i 109, 125, 194 P.3d 1071, 1087 (2008) ("Arguably,
where an agency promulgates a rule, we will accord consideration
to its interpretation of its own rules."); Camara v. Agsalud, 67
Haw. 212, 216, 685 P.2d 794, 797 (1984) (noting that "is
particularly true where the law to be applied is not a statute
but an administrative rule promulgated by the same agency
interpreting it"). But courts do not defer to agency
interpretations that are "plainly erroneous or inconsistent with
the underlying legislative purpose." In re Wai#ola O Moloka#i,
Inc., 103 Hawai#i 401, 425, 83 P.3d 664, 688 (2004).

III. POINTS OF ERROR

The opening briefs argue error by the Circuit Court,
rather than addressing the Board of Appeals' procedure and orders
for de novo review. Similarly, the answering briefs argue why
the Circuit Court's findings, conclusions, and determinations
should be affirmed.
Bearing in mind the standard of review for this
secondary appeal, we have reframed and reordered the County's and
Homeowners' statements of the points of error. They contend the
Board of Appeals' summary judgment orders should have been
affirmed because (1) the Board of Appeals was authorized to
decide appeals by summary judgment; (2) Homeowners were not
engaged in short-term vacation rental activity as defined by the
Hawai#i County Code; and (3) Rosehill v. Land Use Comm'n, 155
Hawai#i 41, 556 P.3d 387 (2024) is distinguishable.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IV. DISCUSSION

A. These appeals are not moot; even if they
were, the public interest exception would
apply.

We must first address Neighbors' contention that these
appeals are moot. "A case is moot if the reviewing court can no
longer grant effective relief." Wilmington Sav. Fund Soc'y, FSB
v. Domingo, 155 Hawai#i 1, 13, 556 P.3d 347, 359 (2024).
"[O]n motions related to mootness, the appellate court
may consider matters outside the record" where the parties do not
challenge the accuracy of the documents or the facts submitted to
show mootness. Queen Emma Found. v. Tatibouet, 123 Hawai#i 500,
507 n.8, 236 P.3d 1236, 1243 n.8 (App. 2010). Neighbors supplied
us with copies of the Board of Appeals' orders granting
Neighbors' appeals and reversing the Director's decision based on
the Circuit Court's Judgment on Appeal. The County and
Homeowners do not dispute that the Board of Appeals issued the
orders. We take judicial notice of the orders under Rule 201,
Hawaii Rules of Evidence, Chapter 626, Hawaii Revised Statutes
(2016).
Neighbors argue that the County and Homeowners did not
seek a stay on execution of the Judgment on Appeal. But this is
not a case where, for example, a judgment of foreclosure was not
stayed and the foreclosed property was sold to a good-faith
purchase while the mortgagor's appeal was pending. See, e.g.,
Domingo, 155 Hawai#i at 10, 556 P.3d at 356 (stating general rule
that "the right of a good faith purchaser to receive property
acquired at a judicial sale cannot be affected by the reversal of
an order ratifying the sale where a supersedeas bond has not been
filed").
We could grant the County and Homeowners effective
relief. If we vacated or reversed the Judgment on Appeal, the
Board of Appeals' orders granting Neighbors' appeals and
reversing the Director's decision — which were based on the

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Judgment on Appeal — would become invalid and Homeowners could
move to reopen proceedings before the Board.
In addition, there are three exceptions to the mootness
doctrine: (1) capable of repetition, yet evading review;
(2) public interest; and (3) collateral consequences. See
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5-8, 193 P.3d
839, 843-46 (2008). The factors for analyzing the public
interest exception are: (1) the public or private nature of the
question presented; (2) the desirability of an authoritative
determination for future guidance of public officers; and (3) the
likelihood of future recurrence of the question. Id. at 6-7, 193
P.3d at 844-45.
Even if these appeals were moot (they're not), county
and state regulation of short-term vacation rentals affects the
public; the Board of Appeals could be guided by resolution of the
procedural issue presented by its summary adjudication of
Neighbors' appeals; and these issues are likely to recur. The
public interest exception would apply.
Neighbors' motions to supplement the records on appeal
are denied as unnecessary. Neighbors' motions to dismiss these
appeals are denied.

B. The Board of Appeals was authorized to
consider dispositive motions.

The Board of Appeals exists under Hawai#i County
Charter § 6-9.2 (2004, as amended 2010):

The board of appeals shall consist of seven members
who shall be appointed by the mayor and confirmed by the
council in the manner prescribed in Section 13-4. Each
member shall be a legal resident and a registered voter of
the county. Board membership shall be representative of the
community, and, whenever possible, persons with background
or expertise in broad areas of planning and construction
shall be given preference, although such knowledge is not a
prerequisite for membership. The board of appeals shall
establish its rules of procedure and shall:
(a) Hear and determine appeals from final decisions
of the planning director or the director of
public works regarding matters within their
respective jurisdictions.
(b) Conduct hearings in accordance with Chapter 91,
Hawai#i Revised Statutes, and this charter.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(c) Be part of the planning department for
administrative purposes, and said department
shall provide necessary clerical and other
assistance.

(Emphasis added.)
The Board of Appeals' Rules of Practice and Procedure
(2021) "govern the practice and procedure before the Board of
Appeals of the County of Hawaii[.]" They are to "be construed to
secure the just and efficient determination of every proceeding."
Rule 1-2(a).
Part 3 of the Rules governs contested case procedures.
Rule 3-12 allows for motions:

(a) Timing. Motions may be made before, during, or after
a hearing.

(b) Form and Contents. Any motion, other than one made
during a hearing, shall be made in writing to the
Board and shall state the relief sought and shall be
accompanied by an affidavit or legal memorandum
setting forth the grounds upon which the motion is
based.

(c) Service of Motions. The moving party shall serve a
copy of all motion documents on all other parties and
shall file them with the Board with proof of service.

(d) Memorandum in Opposition. A memorandum in opposition
or counter affidavit shall be served on all parties
and the memorandum and proof of service shall be filed
with the Board as required by the Scheduling Order or
for matters with no Scheduling Order, within ten (10)
days after being served with the motion. The
presiding officer may order the memorandum in
opposition to be filed at a time other than the ten
(10) day period.
(e) Waiver. Failure to serve or file a memorandum in
opposition to a motion or failure to appear at the
hearing may be deemed a waiver of objection to the
granting or denial of the motion. A party who does
not oppose the motion shall promptly notify the
presiding officer and opposing counsel or party.
(f) Ruling. All motions that involve a final
determination of the proceeding shall be voted and
ruled on by the Board. The presiding officer may rule
on non-dispositive motions in accordance with Section
3-1(b) of these Rules.

(Emphasis added.)
Rule 3-12 comprehends filing dispositive motions.
Deciding a contested case by summary judgment promotes the just

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and efficient determination of the case, consistent with
Rule 1-2(a), when the record shows the material facts are not
disputed and a party is entitled to prevail as a matter of law.
See Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285
(2013).
Neighbors argue that Rule 3-12 violates HRS § 91-
2(a)(2). It doesn't. As is relevant here, HRS § 91-2 (2012)
provides:

(a) In addition to other rulemaking requirements imposed
by law, each agency shall:
. . . .

(2) Adopt rules of practice, setting forth the
nature and requirements of all formal and
informal procedures available, and including a
description of all forms and instructions used
by the agency.

HRS § 91-1 (Supp. 2022) defines "Rule" as "each agency
statement of general or particular applicability and future
effect that implements, interprets, or prescribes law or policy,
or describes the organization, procedure, or practice
requirements of any agency."
Rule 3-12 contains requirements for the timing, form,
contents, and service of motions and oppositions, and for rulings
by the Board of Appeals. Neighbors argue that Rule 3-12 contains
no standards for deciding motions. Many kinds of motions,
procedural and dispositive, could be presented to an agency
hearing a contested case. Nothing in HRS §§ 91-1 or -2 require a
Rule to contain standards for deciding different motions.
We hold that Rule 3-12 authorized the Board of Appeals
to consider dispositive motions such as Homeowners' motions for
summary judgment.

C. The Board of Appeals' orders granting
Homeowners' motions for summary judgment did
not comply with HRS § 91-12.

Homeowners' motions for summary judgment argued "that
the Director's Decision that the 'parcel in question is not in

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

violation of Hawaii County Zoning Code, Chapter 25 or County
Ordinance 97-133' is correct under applicable law and should be
affirmed[.]" The record contained evidence that Neal occupied
the property and operated "an active fruit plantation" with "over
14 types of fruit trees, including a variety of banana, mango,
orange, lime, papaya, dragon fruit, lychee, rambutan and
avocado."
In opposition, Neighbors filed a Motion to Exclude
References to the "Rosehill Case" and a Combined Pre-hearing
Memorandum and Objections to [Home]owners' Motion for Summary
Judgment. They argued the "Rosehill Case" did not address
permitted uses for land in a Hawai#i County Agricultural Project
District, and that Homeowners' "property is located within the
State Agriculture Land Use District and, more specifically,
within a county established Agricultural Project District that
the Hawaii County Council set apart as an Agricultural Project
District." They pointed out that Homeowners

have used and continue to use their farm dwelling to -
accommodate transient visitors for compensation and for
periods of short term duration. This point is not disputed.
(See, e.g., [Home]owners' attorney's letter dated
October 12, 2021, Appellants Exhibit 9)

*However, the [Home]owners did not apply for or obtain
a Special Permit, as is required under the Agricultural
Project District provisions of the County Zoning Code quoted
in Part II, above. Since the [Home]owners have not obtained
a Special Permit to operate a "bed and breakfast" facility
or a "lodge" on the [Home]owners' property, the [Home]owners
are in violation of the County Zoning Code.

Neighbors did not argue there were disputed material
facts. They did not dispute that Neal lived on Homeowners'
property or that Homeowners operated a farm. They argued that
Homeowners' motions "do not cite the governing law that is
applicable in this appeal." They then argued what they contended
was the governing law.
In this secondary appeal, Neighbors argue they were
deprived of a "'full and fair' evidentiary hearing to determine
the material facts of the case before the Board of Appeals." But

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

their briefs do not state what material facts were in dispute, or
describe what material evidence they would have offered to the
Board of Appeals had an evidentiary hearing taken place.
That being said, HRS § 91-12 (2012) provides:

Every decision and order adverse to a party to the
proceeding, rendered by an agency in a contested case, shall
be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of
law.

(Emphasis added.)
Of HRS § 91-12, the supreme court has stated:

Findings of fact, to be sufficient to support an order, must
include the basic facts, from which the ultimate facts in
terms of the statutory criterion are inferred. It is not
necessary for the [agency] to recite the evidence, and it is
not necessary that it set out its findings in the formal
style and manner customary in trial courts. It is enough if
the findings be unambiguously stated, whether in narrative
or numbered form, so that it appears definitely upon what
basic facts the [agency] reached the ultimate facts and came
to its decision.

Hawaii Pub. Emp. Rels. Bd. v. United Public Workers, Local 646,
66 Haw. 461, 472, 667 P.2d 783, 791 (1983) (ellipses omitted).
The Board of Appeals' orders granting Homeowners'
motions for summary judgment stated "there are no genuine issues
of fact, and that [Home]owners have established their entitlement
to judgment as a matter of law[.]" The orders did not contain a
statement of undisputed facts or conclusions of law.
Without a statement of undisputed facts or conclusions
of law, we cannot determine what facts the Board of Appeals
considered material, whether those facts are shown by substantial
evidence in the record before the Board, Sierra Club v. D.R.
Horton-Schuler Homes, LLC, 136 Hawai#i 505, 515-16, 364 P.3d 213,
223-24 (2015), or whether the Board's conclusions of law were
right or wrong, id. We are unable to address the County's and
Homeowners' substantive points of error under the applicable
standard of review.
Accordingly, we reverse the Judgment on Appeal and
remand to the Board of Appeals for entry of amended orders — or,

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

should the Board decide it appropriate to consolidate Neighbors'
appeals, one order — that comply (or complies) with HRS § 91-12.
International Brotherhood of Electrical Workers, Local 1357 v.
Hawaiian Tel. Co., 68 Haw. 316, 328, 713 P.2d 943, 953 (1986)
(stating that "remand pursuant to HRS § 91–14(g) is appropriate
if an agency's findings are incomplete and provide no basis for
review").

V. CONCLUSION

The November 8, 2024 Findings of Fact, Conclusions of
Law, and Order is vacated. The December 2, 2024 Judgment on
Appeal is reversed. Neighbors' motions to supplement the records
on appeal6 and motions to dismiss these appeals7 are denied.
This case is remanded to the Board of Appeals for further
proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, March 30, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Patrick K. Wong,
Carina I. Fasi, /s/ Keith K. Hiraoka
for Respondents-Appellees- Associate Judge
Appellees-Appellants,
Ryan A. Neal and /s/ Sonja M.P. McCullen
Beata M. Zanone. Associate Judge

Michael J. Matsukawa
for Complainants-Appellants-
Appellees, Lawrence Ford,
John Koontz, Don Davis,
Phillip Koszarek, William
Robert Gage, Jr., and
Rebecca S. Gage.

6
CAAP-XX-XXXXXXX dkts. 70 and 76; CAAP-XX-XXXXXXX dkt. 93.
7
CAAP-XX-XXXXXXX dkt. 78; CAAP-XX-XXXXXXX dkt. 100.

13

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2026
08:29 AM
Dkt. 99 MO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
LAWRENCE FORD; JOHN KOONTZ; DON DAVIS; PHILLIP KOSZAREK;
WILLIAM ROBERT GAGE, JR.; REBECCA S. GAGE,
Complainants-Appellants-Appellees,
v.
BOARD OF APPEALS, COUNTY OF HAWAI#I, Agency-Appellant,
and JEFF DARROW,1 DIRECTOR, DEPARTMENT OF PLANNING,
COUNTY OF HAWAI#I, Appellee-Appellant, and
RYAN A. NEAL; BEATA M. ZANONE, Respondents-Appellees-Appellees

and
CAAP-XX-XXXXXXX
LAWRENCE FORD; JOHN KOONTZ; DON DAVIS; PHILLIP KOSZAREK;
WILLIAM ROBERT GAGE, JR.; REBECCA S. GAGE,
Complainants-Appellants-Appellees,
v.
BOARD OF APPEALS, COUNTY OF HAWAI#I, Agency-Appellee,
and JEFF DARROW, DIRECTOR, DEPARTMENT OF PLANNING,
COUNTY OF HAWAI#I, Appellee-Appellee, and
RYAN A. NEAL; BEATA M. ZANONE, Respondents-Appellees-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CCV-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Ryan A. Neal and Beata M. Zanone (Homeowners) own
property in Captain Cook, Hawai#i, in the Hawai#i County
Agricultural Project District and the State Land Use Agriculture

1
Jeff Darrow, the current Director of the County of Hawai #i
Department of Planning, is substituted for Zendo Kern, the former director,
under Hawai#i Rules of Appellate Procedure Rule 43(c)(1).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

District. Their neighbors2 complained to the Hawai#i County
Planning Department's Director that they were operating a short-
term rental business on their property without a permit, in
violation of county zoning ordinances and state land use
statutes.
The Director determined that Homeowners were not
violating county zoning ordinances. The neighbors appealed to
the Hawai#i County Board of Appeals.3 The Board of Appeals
granted Homeowners' motions for summary judgment and dismissed
the appeals.
Neighbors4 appealed to the Circuit Court of the Third
Circuit. The court ruled that the Board of Appeals "violated
applicable statutes, used an unlawful procedure, committed errors
of law, made decisions that are clearly erroneous and acted in an
arbitrary manner[.]"5
In CAAP-XX-XXXXXXX, the Director and the Board of
Appeals (together, the County) appeal from the Circuit Court's
Judgment on Appeal. In CAAP-XX-XXXXXXX, Homeowners appeal from
the Judgment on Appeal. We consolidated the appeals. We hold:
(1) the Board of Appeals was authorized to consider dispositive
motions; but (2) the Board's orders granting Homeowners' motions
for summary judgment did not contain statements of undisputed
material fact or conclusions of law as required by Hawaii Revised
Statutes (HRS) § 91-12 (2012). We reverse the Circuit Court's
Judgment on Appeal and remand to the Board of Appeals for further
proceedings.

2
Don Davis, Lawrence Ford, William Robert Gage, Jr., Rebecca S.
Gage, Peter Hazard, John Koontz, Phillip Koszarek, and John LoGerfo.
3
Davis, Ford, Hazard, Koontz, Koszarek, and LoGerfo's appeal was
docketed as PL-BOA-2022-000020. The Gages' appeal was docketed as
PL-BOA-2022-000021. The appeals were not formally consolidated. The parties
agreed to consolidate the contested case hearings, although separate decisions
would be issued.
4
Davis, Ford, Koontz, Koszarek, and the Gages.
5
The Honorable Wendy M. DeWeese presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I. PROCEDURAL HISTORY

In June and July 2021, Homeowners' neighbors complained
to the Director that Homeowners were operating a short-term
rental business on their property without a permit.
By letter dated September 17, 2021, the Director warned
Homeowners that short-term vacation rentals were regulated by the
County Zoning Code. Homeowners were asked to comply with the law
within thirty days.
By letter dated October 12, 2021, Homeowners informed
the Director that Neal resided on the property full-time, Zanone
resided on the property more than half-time, and they hosted
guests on the property as a hosted short- or long-term rental
that complied with all applicable rules and regulations.
By letter dated October 21, 2021, the Director informed
Homeowners that the Planning Department confirmed they were not
operating a short-term vacation rental, and the case was being
closed.
By letters to the Director dated January 20, 2022, the
neighbors explained they were not complaining about violation of
Hawai#i County Council's Ordinance 18-114 (pertaining to non-
hosted short-term vacation rentals), but about short-term rental
activity in the State Agriculture district in violation of HRS
Chapter 205. They asked that the Director revise his letter to
Homeowners consistent with the State Land Use Commission's
May 20, 2021 declaratory order in Rosehill v. County of Hawai#i
and Act 77 of the 2021 Hawaii Session Laws, which had taken
effect on July 1, 2021.
By letters dated February 15, 2022, the Director
informed the neighbors of the Planning Department's
investigation. The letters stated:

Our investigation and inspection into the alleged activity
revealed that the "dwelling" in question is considered a
farm dwelling as required by County Ordinance 97-133, and
that the property is the primary residence of the landowner
Mr. Neal. Online advertisements clearly states [sic] that
Mr. Neal resides on the property.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Planning was also able to verify farming activity on the
property, which includes the cultivation [sic] lychee,
rambutan and citrus fruits.

Hawaii County Zoning Code Chapter 25, Section 25-1-5.
Definitions:
"Farm Dwelling" means a single-family dwelling located on or
used in connection with a farm, or if the agricultural
activity provides income to the family occupying the
dwelling.
"Short-Term Vacation Rental" (STVR) means a dwelling unit of
which the owner or operator does not reside on the building
site, that has no more than five bedrooms for rent on the
building site and is rented for a period of thirty
consecutive days or less.
Based on the findings and the definitions provided above, we
have determined that the parcel in question is not in
violation of the Hawaii County Zoning Code, Chapter 25 or
County Ordinance 97-133. This case is now closed.

The neighbors appealed to the Board of Appeals. The
Board scheduled contested case hearings. It issued a Scheduling
Order that provided:

4. Dispositive motions shall be served upon the opposing
party and filed with the Board no later than
September 30, 2022, by 4:30 p.m. The form and service
of any dispositive motion shall be made in accordance
with Board Rule 3-12.
5. Any memorandum in opposition to any dispositive motion
shall be served upon the opposing party and filed with
the Board no later than October 5, 2022, by 4:30 p.m.,
and shall be made in accordance with Board Rule 3-12.

Homeowners moved for summary judgment. The Board of
Appeals considered the motions for summary judgment at a
December 9, 2022 hearing. After hearing the parties' arguments,
the Board convened an executive session. After reconvening the
hearing, it voted to grant Homeowners' motions for summary
judgment. It then concluded the hearing.
The Board of Appeals issued substantially identical
orders granting Homeowners' motions for summary judgment on
April 26, 2023. The orders dismissed the appeals.
Neighbors appealed to the Circuit Court under HRS
§ 91-14. The Circuit Court concluded that the Board of Appeals

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

used unauthorized procedure, met in an unauthorized executive
session, failed to render written findings and conclusions to
support its orders, and ignored a decision by the Circuit Court
of the Fifth Circuit Court concluding that transient
accommodation activity is not a permitted use in the State Land
Use Agriculture District. The Circuit Court vacated the Board of
Appeals' orders and directed the Board of Appeals to grant
Neighbors' appeals.
These secondary appeals followed. While the appeals
were pending, the Board of Appeals entered orders granting
Neighbors' appeals and reversing the Director's decision based on
the Circuit Court's Judgment on Appeal. Neighbors moved to
supplement the records on appeal with the Board of Appeals'
orders, and moved to dismiss these appeals, arguing they were "no
longer justiciable."

II. STANDARDS OF REVIEW

A. Secondary Appeals

Our review of a circuit court decision on an appeal
from an administrative agency decision is a secondary appeal; we
must determine whether the circuit court was right or wrong by
applying the standards of HRS § 91–14(g) to the agency's
decision. Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114,
120, 424 P.3d 469, 475 (2018). Our review is generally confined
to the record before the agency. HRS § 91-14(f) (2012 & Supp.
2024).
Under HRS § 91-14(g) a reviewing court may affirm the
agency's decision; or remand the case with instructions for
further proceedings; or reverse or modify the agency's decision
and order if the appellant's substantial rights may have been
prejudiced because the administrative findings, conclusions,
decisions, or orders: (1) violate provisions of the constitution
or a statute, (2) are beyond the agency's statutory authority or
jurisdiction, (3) used unlawful procedure, (4) were affected by

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

other error of law, (5) were clearly erroneous, or (6) were
arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. Cadiz v. QSI,
Inc., 148 Hawai#i 96, 106-07, 468 P.3d 110, 120-21 (2020).

B. Agency Rules

An agency's interpretation of its own rules is
generally entitled to deference. Gillan v. Gov't Emp. Ins. Co.,
119 Hawai#i 109, 125, 194 P.3d 1071, 1087 (2008) ("Arguably,
where an agency promulgates a rule, we will accord consideration
to its interpretation of its own rules."); Camara v. Agsalud, 67
Haw. 212, 216, 685 P.2d 794, 797 (1984) (noting that "is
particularly true where the law to be applied is not a statute
but an administrative rule promulgated by the same agency
interpreting it"). But courts do not defer to agency
interpretations that are "plainly erroneous or inconsistent with
the underlying legislative purpose." In re Wai#ola O Moloka#i,
Inc., 103 Hawai#i 401, 425, 83 P.3d 664, 688 (2004).

III. POINTS OF ERROR

The opening briefs argue error by the Circuit Court,
rather than addressing the Board of Appeals' procedure and orders
for de novo review. Similarly, the answering briefs argue why
the Circuit Court's findings, conclusions, and determinations
should be affirmed.
Bearing in mind the standard of review for this
secondary appeal, we have reframed and reordered the County's and
Homeowners' statements of the points of error. They contend the
Board of Appeals' summary judgment orders should have been
affirmed because (1) the Board of Appeals was authorized to
decide appeals by summary judgment; (2) Homeowners were not
engaged in short-term vacation rental activity as defined by the
Hawai#i County Code; and (3) Rosehill v. Land Use Comm'n, 155
Hawai#i 41, 556 P.3d 387 (2024) is distinguishable.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IV. DISCUSSION

A. These appeals are not moot; even if they
were, the public interest exception would
apply.

We must first address Neighbors' contention that these
appeals are moot. "A case is moot if the reviewing court can no
longer grant effective relief." Wilmington Sav. Fund Soc'y, FSB
v. Domingo, 155 Hawai#i 1, 13, 556 P.3d 347, 359 (2024).
"[O]n motions related to mootness, the appellate court
may consider matters outside the record" where the parties do not
challenge the accuracy of the documents or the facts submitted to
show mootness. Queen Emma Found. v. Tatibouet, 123 Hawai#i 500,
507 n.8, 236 P.3d 1236, 1243 n.8 (App. 2010). Neighbors supplied
us with copies of the Board of Appeals' orders granting
Neighbors' appeals and reversing the Director's decision based on
the Circuit Court's Judgment on Appeal. The County and
Homeowners do not dispute that the Board of Appeals issued the
orders. We take judicial notice of the orders under Rule 201,
Hawaii Rules of Evidence, Chapter 626, Hawaii Revised Statutes
(2016).
Neighbors argue that the County and Homeowners did not
seek a stay on execution of the Judgment on Appeal. But this is
not a case where, for example, a judgment of foreclosure was not
stayed and the foreclosed property was sold to a good-faith
purchase while the mortgagor's appeal was pending. See, e.g.,
Domingo, 155 Hawai#i at 10, 556 P.3d at 356 (stating general rule
that "the right of a good faith purchaser to receive property
acquired at a judicial sale cannot be affected by the reversal of
an order ratifying the sale where a supersedeas bond has not been
filed").
We could grant the County and Homeowners effective
relief. If we vacated or reversed the Judgment on Appeal, the
Board of Appeals' orders granting Neighbors' appeals and
reversing the Director's decision — which were based on the

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Judgment on Appeal — would become invalid and Homeowners could
move to reopen proceedings before the Board.
In addition, there are three exceptions to the mootness
doctrine: (1) capable of repetition, yet evading review;
(2) public interest; and (3) collateral consequences. See
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5-8, 193 P.3d
839, 843-46 (2008). The factors for analyzing the public
interest exception are: (1) the public or private nature of the
question presented; (2) the desirability of an authoritative
determination for future guidance of public officers; and (3) the
likelihood of future recurrence of the question. Id. at 6-7, 193
P.3d at 844-45.
Even if these appeals were moot (they're not), county
and state regulation of short-term vacation rentals affects the
public; the Board of Appeals could be guided by resolution of the
procedural issue presented by its summary adjudication of
Neighbors' appeals; and these issues are likely to recur. The
public interest exception would apply.
Neighbors' motions to supplement the records on appeal
are denied as unnecessary. Neighbors' motions to dismiss these
appeals are denied.

B. The Board of Appeals was authorized to
consider dispositive motions.

The Board of Appeals exists under Hawai#i County
Charter § 6-9.2 (2004, as amended 2010):

The board of appeals shall consist of seven members
who shall be appointed by the mayor and confirmed by the
council in the manner prescribed in Section 13-4. Each
member shall be a legal resident and a registered voter of
the county. Board membership shall be representative of the
community, and, whenever possible, persons with background
or expertise in broad areas of planning and construction
shall be given preference, although such knowledge is not a
prerequisite for membership. The board of appeals shall
establish its rules of procedure and shall:
(a) Hear and determine appeals from final decisions
of the planning director or the director of
public works regarding matters within their
respective jurisdictions.
(b) Conduct hearings in accordance with Chapter 91,
Hawai#i Revised Statutes, and this charter.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(c) Be part of the planning department for
administrative purposes, and said department
shall provide necessary clerical and other
assistance.

(Emphasis added.)
The Board of Appeals' Rules of Practice and Procedure
(2021) "govern the practice and procedure before the Board of
Appeals of the County of Hawaii[.]" They are to "be construed to
secure the just and efficient determination of every proceeding."
Rule 1-2(a).
Part 3 of the Rules governs contested case procedures.
Rule 3-12 allows for motions:

(a) Timing. Motions may be made before, during, or after
a hearing.
(b) Form and Contents. Any motion, other than one made
during a hearing, shall be made in writing to the
Board and shall state the relief sought and shall be
accompanied by an affidavit or legal memorandum
setting forth the grounds upon which the motion is
based.

(c) Service of Motions. The moving party shall serve a
copy of all motion documents on all other parties and
shall file them with the Board with proof of service.

(d) Memorandum in Opposition. A memorandum in opposition
or counter affidavit shall be served on all parties
and the memorandum and proof of service shall be filed
with the Board as required by the Scheduling Order or
for matters with no Scheduling Order, within ten (10)
days after being served with the motion. The
presiding officer may order the memorandum in
opposition to be filed at a time other than the ten
(10) day period.
(e) Waiver. Failure to serve or file a memorandum in
opposition to a motion or failure to appear at the
hearing may be deemed a waiver of objection to the
granting or denial of the motion. A party who does
not oppose the motion shall promptly notify the
presiding officer and opposing counsel or party.

(f) Ruling. All motions that involve a final
determination of the proceeding shall be voted and
ruled on by the Board. The presiding officer may rule
on non-dispositive motions in accordance with Section
3-1(b) of these Rules.

(Emphasis added.)
Rule 3-12 comprehends filing dispositive motions.
Deciding a contested case by summary judgment promotes the just

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and efficient determination of the case, consistent with
Rule 1-2(a), when the record shows the material facts are not
disputed and a party is entitled to prevail as a matter of law.
See Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285
(2013).
Neighbors argue that Rule 3-12 violates HRS § 91-
2(a)(2). It doesn't. As is relevant here, HRS § 91-2 (2012)
provides:

(a) In addition to other rulemaking requirements imposed
by law, each agency shall:
. . . .

(2) Adopt rules of practice, setting forth the
nature and requirements of all formal and
informal procedures available, and including a
description of all forms and instructions used
by the agency.

HRS § 91-1 (Supp. 2022) defines "Rule" as "each agency
statement of general or particular applicability and future
effect that implements, interprets, or prescribes law or policy,
or describes the organization, procedure, or practice
requirements of any agency."
Rule 3-12 contains requirements for the timing, form,
contents, and service of motions and oppositions, and for rulings
by the Board of Appeals. Neighbors argue that Rule 3-12 contains
no standards for deciding motions. Many kinds of motions,
procedural and dispositive, could be presented to an agency
hearing a contested case. Nothing in HRS §§ 91-1 or -2 require a
Rule to contain standards for deciding different motions.
We hold that Rule 3-12 authorized the Board of Appeals
to consider dispositive motions such as Homeowners' motions for
summary judgment.

C. The Board of Appeals' orders granting
Homeowners' motions for summary judgment did
not comply with HRS § 91-12.

Homeowners' motions for summary judgment argued "that
the Director's Decision that the 'parcel in question is not in

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

violation of Hawaii County Zoning Code, Chapter 25 or County
Ordinance 97-133' is correct under applicable law and should be
affirmed[.]" The record contained evidence that Neal occupied
the property and operated "an active fruit plantation" with "over
14 types of fruit trees, including a variety of banana, mango,
orange, lime, papaya, dragon fruit, lychee, rambutan and
avocado."
In opposition, Neighbors filed a Motion to Exclude
References to the "Rosehill Case" and a Combined Pre-hearing
Memorandum and Objections to [Home]owners' Motion for Summary
Judgment. They argued the "Rosehill Case" did not address
permitted uses for land in a Hawai#i County Agricultural Project
District, and that Homeowners' "property is located within the
State Agriculture Land Use District and, more specifically,
within a county established Agricultural Project District that
the Hawaii County Council set apart as an Agricultural Project
District." They pointed out that Homeowners

have used and continue to use their farm dwelling to -
accommodate transient visitors for compensation and for
periods of short term duration. This point is not disputed.
(See, e.g., [Home]owners' attorney's letter dated
October 12, 2021, Appellants Exhibit 9)

*However, the [Home]owners did not apply for or obtain
a Special Permit, as is required under the Agricultural
Project District provisions of the County Zoning Code quoted
in Part II, above. Since the [Home]owners have not obtained
a Special Permit to operate a "bed and breakfast" facility
or a "lodge" on the [Home]owners' property, the [Home]owners
are in violation of the County Zoning Code.

Neighbors did not argue there were disputed material
facts. They did not dispute that Neal lived on Homeowners'
property or that Homeowners operated a farm. They argued that
Homeowners' motions "do not cite the governing law that is
applicable in this appeal." They then argued what they contended
was the governing law.
In this secondary appeal, Neighbors argue they were
deprived of a "'full and fair' evidentiary hearing to determine
the material facts of the case before the Board of Appeals." But

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

their briefs do not state what material facts were in dispute, or
describe what material evidence they would have offered to the
Board of Appeals had an evidentiary hearing taken place.
That being said, HRS § 91-12 (2012) provides:

Every decision and order adverse to a party to the
proceeding, rendered by an agency in a contested case, shall
be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of
law.

(Emphasis added.)
Of HRS § 91-12, the supreme court has stated:

Findings of fact, to be sufficient to support an order, must
include the basic facts, from which the ultimate facts in
terms of the statutory criterion are inferred. It is not
necessary for the [agency] to recite the evidence, and it is
not necessary that it set out its findings in the formal
style and manner customary in trial courts. It is enough if
the findings be unambiguously stated, whether in narrative
or numbered form, so that it appears definitely upon what
basic facts the [agency] reached the ultimate facts and came
to its decision.

Hawaii Pub. Emp. Rels. Bd. v. United Public Workers, Local 646,
66 Haw. 461, 472, 667 P.2d 783, 791 (1983) (ellipses omitted).
The Board of Appeals' orders granting Homeowners'
motions for summary judgment stated "there are no genuine issues
of fact, and that [Home]owners have established their entitlement
to judgment as a matter of law[.]" The orders did not contain a
statement of undisputed facts or conclusions of law.
Without a statement of undisputed facts or conclusions
of law, we cannot determine what facts the Board of Appeals
considered material, whether those facts are shown by substantial
evidence in the record before the Board, Sierra Club v. D.R.
Horton-Schuler Homes, LLC, 136 Hawai#i 505, 515-16, 364 P.3d 213,
223-24 (2015), or whether the Board's conclusions of law were
right or wrong, id. We are unable to address the County's and
Homeowners' substantive points of error under the applicable
standard of review.
Accordingly, we reverse the Judgment on Appeal and
remand to the Board of Appeals for entry of amended orders — or,

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

should the Board decide it appropriate to consolidate Neighbors'
appeals, one order — that comply (or complies) with HRS § 91-12.
International Brotherhood of Electrical Workers, Local 1357 v.
Hawaiian Tel. Co., 68 Haw. 316, 328, 713 P.2d 943, 953 (1986)
(stating that "remand pursuant to HRS § 91–14(g) is appropriate
if an agency's findings are incomplete and provide no basis for
review").

V. CONCLUSION

The November 8, 2024 Findings of Fact, Conclusions of
Law, and Order is vacated. The December 2, 2024 Judgment on
Appeal is reversed. Neighbors' motions to supplement the records
on appeal6 and motions to dismiss these appeals7 are denied.
This case is remanded to the Board of Appeals for further
proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, March 30, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Patrick K. Wong,
Carina I. Fasi, /s/ Keith K. Hiraoka
for Respondents-Appellees- Associate Judge
Appellees-Appellants,
Ryan A. Neal and /s/ Sonja M.P. McCullen
Beata M. Zanone. Associate Judge

Michael J. Matsukawa
for Complainants-Appellants-
Appellees, Lawrence Ford,
John Koontz, Don Davis,
Phillip Koszarek, William
Robert Gage, Jr., and
Rebecca S. Gage.

6
CAAP-XX-XXXXXXX dkts. 70 and 76; CAAP-XX-XXXXXXX dkt. 93.
7
CAAP-XX-XXXXXXX dkt. 78; CAAP-XX-XXXXXXX dkt. 100.

13